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Church & State

‘Court-Stripping’ Bill Focused On Pledge Passes The U.S. House

November2004People & Events

The House of Representatives in September passed legislation to strip the\n federal courts of their right to hear cases involving the Pledge of Allegiance.

House conservatives engineered the 247-173 vote Sept. 23 as a sop to the\n Religious Right. The Christian Coalition and the Family Research Council plan\n to use the tally on their “voter guides” and scorecards to try\n to sway tight House races in November.

“This bill is a dramatic assault on the courts and individual rights,\n wrapped in phony patriotism,” said Barry W. Lynn, Americans United executive\n director. “This is election-year grandstanding at its worst.”

The bill forbids all federal courts, including the U.S. Supreme Court, from\n hearing any cases involving the Pledge. The legislation is a reaction to a\n federal appeals court ruling in 2002 that struck down public school recitation\n of the Pledge due to the inclusion of the words “one nation under God.”

The Supreme Court later tossed out that ruling, declaring that the man who\n brought the challenge, California atheist Michael Newdow, did not have a legal\n right to bring the case. The high court said Newdow could not sue on behalf\n of his daughter, since he lacks primary custody of the girl.

House members allied with Religious Right groups engineered the Pledge vote\n and others on controversial “culture war” issues to give ammo to\n the right wing in advance of the election.

Beyond the November election, Religious Right leaders have high hopes for\n the court-stripping strategy. Tony Perkins, president of the Family Research\n Council, admitted in an e-mail to supporters that the votes are part of a larger\n effort to remake America in the Religious Right’s image.

“While the phrase ‘under God’ is a relatively new addition\n to the Pledge – the fact that we are a nation founded on Christian ideals\n is not,” Perkins wrote. “Unfortunately, there are those seeking\n to erase our Christian heritage from our nation’s memory, and they are\n not afraid to use a compliant judiciary to reach that goal.”

Most legal scholars say such “court stripping” measures are unconstitutional.\n Testifying before a House panel about a separate court-stripping proposal on\n June 24, William & Mary Law School professor Michael J. Gerhardt said Congress\n does not have the power to curb the federal courts in this way.

“Distrust of ‘unelected judges’ does not qualify as a legitimate\n basis, much less a compelling justification, for congressional action,” Gerhardt\n observed. “‘Unelected judges,’ in the form of our federal\n judiciary, are integral to protecting the rule of law in our legal system,\n balance of power among the branches and protecting unpopular minorities from\n the tyranny of the majority.”

AU’s Lynn agreed.

“The supporters of this bill have shown callous disregard for long-standing\n constitutional principles,” Lynn said. “The federal courts should\n be open to all Americans seeking protection of their constitutional rights.”

The Pledge Act, sponsored by Rep. Todd Akin (R-Mo.), is the second court-stripping\n bill passed by the House this session. In July, the House approved a bill banning\n the federal courts from hearing challenges to the federal Defense of Marriage\n Act.

Both measures are expected to face skeptical receptions in the Senate.